It is important to note that
the House of Lords is not empowered to strike down primary legislation, which
it finds incompatible with the Convention: only Parliament can do that. So, for now at least, Section 23 remains on
the statute book – and the detainees remain in detention. It remains to be seen whether the Government
will bring forward proposals to repeal Section 23, or amend it in an attempt to
make it compatible with the Convention.
Given its desire to appear “tough on terrorism” in the run up to the
General Election, the Government may be in no hurry to do so.
Background
The background to this is as follows. In November 2001, the Government wanted to
detain indefinitely a small number of foreign nationals, who were said to be a
threat to national security and to have links with “international terrorism”, but against whom it was said there was
insufficient evidence to mount a prosecution, and whom it was illegal to
deport.
In principle,
it is possible to deport such individuals under the 1971 Immigration Act on the
grounds that their presence in the UK is deemed to be, in the words of the Act,
“not conducive to the public good”.
Furthermore, holding them in custody prior to deportation, even though
they haven’t been convicted of an offence, is not incompatible with the
European Convention, because Article 5(1)(f) provides for the detention of “a person against whom action is being taken with a view to
deportation”.
However, a
problem arises if there isn’t a country to which such individuals can be safely
deported. Article 3 of the Convention
says: “No one shall be subjected to torture or to inhuman or degrading
treatment or punishment”. It is the
duty of the UK, as a signatory to the Convention, to safeguard everybody in its
jurisdiction from such treatment, including those it wishes to deport. It is therefore contrary to Article 3 of the
Convention for the UK to deport an individual to a country where he may be
subject to such treatment.
To complicate
matters further, the European Court of Human Rights in Strasbourg determined in the case of Chahal v United
Kingdom (1996) 23 EHRR 413 that an individual cannot be detained
indefinitely, while a safe country is sought.
Chahal, who was an Indian citizen and a
Sikh separatist, couldn’t be deported to India lest his Article 3 rights be
infringed and he had been in custody for six and a half years. The Court found his detention to be contrary
to Article 5(1)(f) – because after six and a half years detention and no safe
country in prospect for him to go to, it could no longer be said that “action
was being taken with a view to deportation”.
So, in November 2001, when
the Government set out to legislate, the legal position was that a non-national
who faced the prospect of torture or inhuman treatment if returned to his own
country, and who could not be deported to a third country, and who wasn’t
charged with any crime, could not under Article 5(1)(f) of the Convention be
detained here, even if he was deemed to be a threat to national security.
The Government’s “solution”
was to derogate from its obligations under Article 5(1)(f) of the Convention,
in order to legislate for the indefinite detention of such persons in Section
23 of the Anti-terrorism, Crime and Security Act 2001.
Under Article 15 of the
Convention, entitled Derogation
in time of emergency,
signatory states may, in extreme circumstances, derogate from some articles of
the Convention (including Article 5, although not Article 3). Article 15(1) says:
“In time of war or other public emergency threatening the life of the
nation any High Contracting Party may take measures derogating from its
obligations under this Convention to the extent strictly required by the
exigencies of the situation, provided that such measures are not inconsistent
with its other obligations under international law”.
On 12 November
2001, in an attempt to ensure that Section 23 was compatible with the
Convention, the Home Secretary, David Blunkett, laid an Order under the Human
Rights Act 1998 before Parliament, declaring that “a public emergency
threatening the life of the nation” exists in the UK, and derogating from
Article 5(1) of the Convention (in reality Article 5(1)(f)). A week later on 19 November, after
considering the issue for 90 minutes from 10:30pm until midnight, the House of
Commons approved the Order.
What justification did the Home
Secretary give for declaring that such a “public emergency” existed in the
UK? Primarily, because the US had been
attacked a couple of months earlier. In
the words of the Order:
“The
terrorist attacks in New York, Washington, DC and Pennsylvania on 11 September
2001 resulted in several thousand deaths, including many British victims and others
from 70 different countries. In its resolutions 1368 (2001) and 1373 (2001),
the United Nations Security Council recognised the attacks as a threat to
international peace and security.
“The threat from international terrorism is a continuing one. In its
resolution 1373 (2001), the Security Council, acting under Chapter VII of the
United Nations Charter, required all States to take measures to prevent the
commission of terrorist attacks, including by denying safe haven to those who
finance, plan, support or commit terrorist attacks.
“There
exists a terrorist threat to the United Kingdom from persons suspected of
involvement in international terrorism. In particular, there are foreign
nationals present in the United Kingdom who are suspected of being concerned in
the commission, preparation or instigation of acts of international terrorism,
of being members of organisations or groups which are so concerned or of having
links with members of such organisations or groups, and who are a threat to the
national security of the United Kingdom.
“As a
result, a public emergency, within the meaning of Article 15(1) of the
Convention, exists in the United Kingdom.”
When
the “public emergency” was declared, there had been no terrorist incidents in
the UK associated with the 11 September attacks in New York and
Washington. Nor have there been any
since, but the “public emergency” still exists.
(There
have been terrorist incidents, in Northern Ireland and in Britain, by dissident
IRA groups, and by Protestant paramilitary groups, but, even though these have
actually damaged life and limb, they didn’t get a mention in Blunkett’s
justification for the existence of this “public emergency”).
Issues to be decided
In
considering whether Section 23 of the Anti-terrorism, Crime and Security Act
2001 is compatible with the Convention, the House of Lords had to decide, inter
alia:
(1)
whether a public
emergency exists in the UK within the meaning of Article 15 of the Convention,
and
(2)
whether the measures
taken in Section 23 are “strictly required by the exigencies of the situation”,
in other words, was detention without trial really necessary to deal with the
threat allegedly posed by the individuals detained, and
(3)
whether the measures
taken were consistent with the UK’s other obligations under international law,
including under the Convention itself.
With
the exception of Lord Hoffman, all the Law Lords agreed that a public emergency
did exist within the meaning of Article 15.
But only one of them – Lord Walker – found that the provisions of
Section 23 were necessary, and consistent with the UK’s obligations under
international law. The rest agreed that
these measures were disproportionate and, furthermore, their application to
non-British nationals only constituted discrimination contrary to Article 14 of
the Convention.
Before
the Convention was brought into UK domestic law in the Human Rights Act 1998,
the European Court of Human Rights in Strasbourg was the body to which appeal
had to be made in cases claiming the denial of Convention rights. In Section 2(1) of the Human Rights Act,
domestic courts are required to take account of the judgments of the European
Court in adjudicating on these matters.
A public emergency?
As
regards the declaration of “a public emergency threatening the life of the
nation” under Article 15, it has been the practice of the European Court to
accept that such an emergency exists, if a signatory state declares that one
exists. The Court has even gone so far as
to state formally that on this matter national authorities know best:
“By reason
of their direct and continuous contact with the pressing needs of the moment,
the national authorities are in principle in a better position than the
international judge to decide both on the presence of such an emergency and on
the nature and scope of derogations necessary to avert it.” (Ireland v
United Kingdom (1978) 2 EHRR 25, quoted by Lord Bingham, paragraph 18)
This deference by the Court
to national authorities began when Gerry Lawless challenged his detention
without trial in 1957 by the Irish Government.
In Lawless v Ireland (No 3) (1961) 1 EHRR 15, the Court upheld
the declaration of emergency by the Irish Government because of the ongoing IRA
campaign in Northern Ireland, even though the only threat to the Irish state
from that action was to extend it by six counties in accordance with its
constitution.
It wasn’t surprising,
therefore, that 8 of the 9 judges concurred with the Home Secretary’s assertion
that “a public emergency threatening the life of the nation” within the
meaning of Article 15 exists in the UK.
Lord Bingham said:
“If … it was open to the
Irish Government in Lawless to conclude that there was a public
emergency threatening the life of the Irish nation, the British Government
could scarcely be faulted for reaching that conclusion in the much more
dangerous situation, which arose after 11 September.”
Only Lord Hoffman disagreed,
and he did so vehemently:
“The Attorney General’s
submissions … treated a threat of serious physical damage and loss of life as
necessarily involving a threat to the life of the nation. But in my opinion
this shows a misunderstanding of what is meant by “threatening the life of the
nation”. Of course the government has a duty to protect the lives and property of
its citizens. But that is a duty which it owes all the time and which it must
discharge without destroying our constitutional freedoms. …
“This is a nation which has
been tested in adversity, which has survived physical destruction and
catastrophic loss of life. I do not underestimate the ability of fanatical
groups of terrorists to kill and destroy, but they do not threaten the life of
the nation. Whether we would survive Hitler hung in the balance, but there is
no doubt that we shall survive Al-Qaeda. …
Terrorist violence, serious as it is, does not threaten our institutions
of government or our existence as a civil community. …
“The real threat to the life
of the nation, in the sense of a people living in accordance with its
traditional laws and political values, comes not from terrorism but from laws
such as these. That is the true measure of what terrorism may achieve. It is
for Parliament to decide whether to give the terrorists such a victory.”
(paragraphs 95-97)
Lord Hoffman also pointed out
that Spain had not declared the bombings in Madrid last March to be a threat to
the life of the Spanish nation. In
fact, none of the more than forty signatories to the Convention, other than the
UK, has felt the need to derogate from the Convention, because of an alleged
threat from Al-Qaeda. Lawyers for the
detainees naturally questioned why the UK was uniquely threatened, to which the
Attorney-General, Lord Goldsmith, replied that the difference in practice could
be found in “this country’s prominent role as an enemy of Al-Qaeda and an ally
of the United States” (quoted by Lord Bingham, paragraph 25).
What an interesting admission
for the Government to make! This
amounts to saying that the Prime Minister has increased the threat to life and
limb in Britain by choosing to stand shoulder to shoulder with President Bush
after 9/11, and following him into Afghanistan and Iraq. The threat to Britain is a result of foreign
policy choices made by the Prime Minister; it can be reduced, if not
eliminated, by different foreign policy choices. This magazine has said this on a number of occasions, but we
never thought we would hear it from the mouth of the Government’s chief law
officer.
Strictly necessary?
Article 15 of the Convention
requires that any measures taken by a member state in derogation of its
obligations under the Convention should not go beyond what is “strictly
required by the exigencies of the situation”.
Lord Bingham addressed this question in paragraphs 30-44 of the
judgment, and concluded that the detention provision in Section 23 did go
beyond what was strictly required to meet the threat and Section 23 was
therefore incompatible with Article 15.
The argument here hinged on
the fact that the measures apply to non-nationals only, even though the
Attorney-General admitted that a number of British nationals were regarded as
posing an equally serious threat. Since
it was reasonable to assume that other measures, short of detention without
trial, are being taken against the latter, and these measures were presumably
adequate to counter the threat posed, it stands to reason that such measures
would be equally effective against non-nationals who cannot be deported. Plainly, therefore, the powers of detention
in Section 23 are not strictly necessary.
The present treatment of
people within the UK who are said to be a threat to national security, but who
cannot be charged, is irrational. Only
foreigners without a safe country to go to are subject to indefinite detention. Other foreigners are allowed to leave the
country and presumably continue to threaten the UK and UK interests
abroad. But British nationals who are
said to be a threat are allowed to remain at large in the UK. It makes no sense whatsoever.
Article 15 of the Convention also
requires that any measures taken by a member state in derogation of its
obligations under the Convention should not be inconsistent with its other
obligations under international law, including under the Convention itself.
The detainees’ lawyers argued
that, in providing for the detention of suspected “international terrorists”
who are not British nationals, but not for the detention of suspected
“international terrorists” who are British nationals, Section 23 unlawfully
discriminates against them, in breach of Article 14 of the European Convention.
This Article, entitled Prohibition of discrimination, says:
“The enjoyment of the rights and freedoms set forth in this Convention
shall be secured without discrimination on any ground such as sex, race, colour,
language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other status.”
Article 1 of the Convention
obliges signatory states to see that Convention rights apply “to everyone
within their jurisdiction”, not just to their own nationals, so the UK’s duty
to see that the rights enshrined in Article 14 are enjoyed by foreign nationals
in the UK, as well as by British nationals.
Furthermore, the UK Government did not derogate from Article 14, prior
to enacting Section 23. Therefore, the
detainees’ lawyers argued, Section 23 discriminates against them in their
enjoyment of liberty under Article 5.
(It is true that nationality is not specifically included as a forbidden
ground for discrimination in Article 14.
But the Attorney General accepted that “or other status” would cover the
detainees’ immigration status, so there is no argument between the parties
here. Nationality is also a forbidden
ground of discrimination in the Race Relations Act 1976.)
On the issue of
discrimination, Lord Bingham concluded:
“Article 15 requires any derogating measures to go no further than is
strictly required by the exigencies of the situation and the prohibition of
discrimination on grounds of nationality or immigration status has not been the
subject of derogation. Article 14 remains in full force. … What cannot be
justified here is the decision to detain one group of suspected international
terrorists, defined by nationality or immigration status, and not another. To
do so was a violation of Article 14.” (paragraph 68)
* * * *
Lord Bingham’s final remarks
were:
“I would allow the appeals. There will be a quashing order in respect of
the Human Rights Act 1998 (Designated Derogation) Order 2001. There will also
be a declaration under section 4 of the Human Rights Act 1998 that section 23
of the Anti-terrorism, Crime and Security Act 2001 is incompatible with
articles 5 and 14 of the European Convention insofar as it is disproportionate
and permits detention of suspected international terrorists in a way that
discriminates on the ground of nationality or immigration status. The Secretary
of State must pay the appellants’ costs in the House and below.” (paragraph 73)
Labour & Trade Union Review
January 2005